8/29/2006

Warning!!! Do not click on this link unless you live in Russia, Canada or Australia. Otherwise, you will be committing a federal crime as well as “stealing” from a man who has been dead for over 50 years!

But – if you happen to be blogging from an underground bunker on the Russian/Siberian border, as I am right now (“cough, cough”), you might want to take advantage of the complete works of George Orwell.You see, Orwell’s work is in the Public Domain in Russia, Canada and Australia – but apparently nowhere else.Orwell died in 1950. Copyright in those places was primarily “life of the author, plus 50 years”. Therefore, Orwell went into the public domain there just after 2000.

Ironically, in 2004, Russia extended its copyright law to “life plus 70 years” in order to appease the Disney–dominated world police who insisted on the change in exchange for economic trading benefits. However, Orwell had apparently fallen into the small window of public domain during the few years before the change took place.

So now, you have the curious spectacle of having the anti-Stalinist “Animal Farm” being freely availbale in Russia, while it is simultanously suppressed in places like Scotland and America unless you strike a financial deal with the “Orwell estate”.

‘If you try to do an Orwell piece without permission, Big Brother is watching you,’ said Guy Masterson who is doing a solo version of ‘Animal Farm.’ …

Splendid Productions presents political theater to young people. It had applied for the rights to tour with ‘Animal Farm’ and was turned down.

The results of our perverse copyright laws in a global digital world are…well…Orwellian.

From a practical standpoint, a globalized digital world forces the law into an “either/or” decision. Either “on” or “off”, “1” or “0”. Either it should be lawful to distribute creative works globally – or it shold be unlawful everywhere. The notion of carving up copyright “territories” based on either geographical locations or modes of delivery is simply unsustainable.

Meanwhile, if you are in Russia, Australia or Canada – feel free to click on any of the links below and enjoy the genius of George Orwell. [The Russian site seems to have the complete works.]

If you are not in any of those countries, then feel free to still visit those sites and download Orwell’s entire works as well – provided that you are doing so consistently with Fair Use.

So when will Orwell ever fall into the public domain in the U.S.? Well…um….You tell me.Were any of Orwell’s articles “works for hire?” Were any of his works published “with notice”? Were they subsequently registered? Renewed?Are you reading them somewhere in the 9th Judicial Circuit? All of these questions factor in to determining if something is in the public domain or not. And we are supposed to find this information out cheaply and conclusively how, exactly?…Well, I guess we would need to hire a copyright lawyer – which is exactly what the copyright/legal industry expects you to do while sitting in front of your computer in your pajams.

People outside of the U.S. are also anxiously awaiting Orwell’s entrence into the Public Domain. And with good reason – he has indeed become a critical author in these times. I’ll make my own case as to why Orwell matters in the coming days. And if you chose to either live in Russia, or defy the law, you can access the work directly and decide for yourself.

For once I can say I have more information freedom than any American. Our (Australian) government must simply have forgotten to pass idiotic, non-enforced restrictive legislation on this. But I’ll enjoy my moment of moral advantage while it lasts.

I have had my copyrights violated twice and had no recourse because the penalties at the time were only $50 per occurance and it was impossible to trace. I had a copyright violated by a TV company but because the show went off the air without being a hit I got jack shit. I hope every copyright violator gets hung by his vagina for ten years. If Orwell’s work is still covered by copyright his heirs are entitled to the royalties.

Sorry to disagree, Mr. Levine. Perhaps all my investments, savings, real estate, etc. should belong to the public after fifty or seventy years from my death? Orwell’s writings are his legacy. They belong to whomever he assigned them, willed them or passed on by intestate inheritance. By what theory other than the Marxist “inheritance is immoral” do they belong to the public?

The “theory” that Orwell’s works belong to the public is both Public Domain and Fair Use. You make a steadfast refusal to distinguish between real property (such as your real estate holdings) and so-called intellectual property, which is not “property” in any meaningful sense of the term. For one to have any moral claim to property, you must first have scarcity which gives it its value. In a digital world, there is no scarcity in intelectual property.

I also assume based on your comments that you don’t beleive that the works of Shakespere should be in the public domain and that his great-great-great-great-great-great-great grandchildren (or 18th cousins 5-times removed perhaps?) should be able to dictate when (or if) his works are ever peformed and also receive royalty payments for them. If you really believe your own “investments, savings, real estate” analogy, then you must hold this position unless I am misunderstanding you somehow.

Far from being “Marxist”, free markets demand much narrower copyright protections than we currently have. Copyrights are government created coercive monopolies that inhibit (or at least retard) the free exchange of ideas.

Here is a link more fully exploring the Libertarian argument against copyright:

But let’s use this to go back to your flawed analogy between real property and intellectual property. Let’s say that I am the first person in my country to open a pizza shop. The government then passes a law “protecting my investment” by decalring all competing pizza shops to be illegal without first getting my “copyright permission” based on my creation of the pizza shop. Any other pizza shop that tries to compete with me will be an unlawful “derrivate work” based on my hard won initial investment. After all, If I didn’t have these protections, I might not have had the incentive to create the pizza place in the first place.

Does this sound like free markerts to you? Or does it sound like “Marxism”, as you say?

Do you see why this is a flawed analogy and why confalting real property and intellectual property isn’t of much use in this debate?

You have managed to avoid my challenge in your comments. It is undisputed that Orwell is NOT still covered by copyright in certain countries (Russia, Australia and Canada). So in a digital world connected to the Internet, how do you stop access to the work?

Should we outlaw people in the U.S. from accessing websites in Russia, Ausralia and Canada?? If we do that, don’t you realize that you would be destroying the very fabric of the Internet based on your concerns for copyright protections?

I’m totally open to reasonable compromise on issues when they are prudent. But sometimes in life, new technologies make compromises impossible. This is either “on” or “off”, “1” or “0”. Either everyone should be able to access these works, or nobody should.

It would be ironic if my progeny’s enthusiasm for preserving (for themselves, exclusively, of course) what monetary value my writings retain results in the depletion of that value. Without meaning any insult to my friend Mr. Disney, both the long-lived marketability of his work and the susceptibility of his work’s value to diminution by copyright infringement are (at least partly) attributable to the relatively low expenditure of intellectual effort required of one who would enjoy that work. Not having Walt’s ability to bring fantasy to, well, if not life, then at least to the screen, I produced work not so readily accessible. Each successive generation of English speaking children of all ages (and undoubtedly some others, through translation) seems eager to pay good money to enjoy Mr. Disney’s animated genius; I wonder whether those who enjoy my work will deem the intellectual effort sufficient payment, and be unwilling to also part with their cash for that privilege. Could it be that my work is of a type whose value increases as it is distributed? Then again, maybe Animal Farm should have had a mouse and a duck.

Sincerely,

Eric Blair (aka George Orwell)

Oh, and Justin, the pizza shop analogy doesn’t work, unless the owner also happened to be the first guy to accidentally spill tomato sauce on a piece of bread. Conceiving that such a product might be sold in a shop isn’t really creating anything worthy of copyright protection. Would you also preserve a monopoly for the first guy to think of selling beer from behind a bar? Such a thing would be possible only in a nation ruled by pigs.

Thank you for gracing us with your presence from beyond the grave. You have proved yourself to be a master intellect and wordsmith – even in death. Most impressive indeed!

Hard to argue with your Dinsey observations. Even harder to argue with your observation that my pizza analogy doesn’t work. But that was my point all along – it naturally doesn’t work. Hence, my proof that any effort in equating real property with intellectual property is doomed to failure.

What property, or for that matter life or liberty, does not rely on protection by the government since caveman days? Additionally, as to the relative value of intellectual property as opposed to “real” property due to scarcity, I either misunderstood Mr. Levine or he has it exactly backward. Intellectual property has value because it is scarce — actually unique. Novelty and originality are requirements for its protection. Millions built houses, tilled farms, amassed gold. There was only one Shakespeare. I suppose from a utilitarian standpoint a good potato crop is worth more than the works of Shakespeare and an artist should be satisfied to work for the sake of his art alone …?

I might agree that the 50 or 70 years protection is the compensation paid by society as it (eventually) exercises eminent domain over the author’s property and puts it to public use but that is an entirely different rationale and the amount of compensation (the duration of protection) is a matter over which reasonable people might disagree. Considering that the word “kleptocracy” was invented to describe Russia, and neither Canada nor Australia can boast of an Orwell let alone a Mark Twain or a Shakespeare I can see how their “compensation” might be on the low side.

(Hmm, usually libertarian proposals make me giggle but this one actually offends my sense of justice. It must be the aspiring poet in me.)

“Intellectual property has value because it is scarce — actually unique.”

This is an utterly bizarre claim. Is there only ONE physical copy of 1984? Are these Orwell webistes that re-print his works mere figments of my imagination? Of course not. There mere fact that a thing can be “copied” obviously means that is is not unique. You can spin that any way you want – but all rational people will understand the distinction you and I are trying to make here.

Think of it this way. Let’s say we lived in a fantasy world where a magic wand existed that could perfectly clone an infinite amount of copies of your unqiue custom-built car without depriving you of the original “master” car. Let’s also assume that these cloned cars could then be instantly transported anywhere in the world at no cost or effort. Your car would then lose its economic value, no? It would also cease to be “unique”, no?

This is not rocket science. Any invention/creation is initially “unique” – until it is copied of cousre.

And perhaps you would now care to answer my question directly: Do you believe that Shakespeare’s current ancestors should have the power to prevent people from performing his plays? Should they still be paid?

I can distinguish between ink smears on paper and the thoughts and beauty those ink smears represent. It is not the physical book which is of value. It is its content. Which is the unique creation of the author and entitled to protection. Likewise that content is the fruit of the labor of the author — otherwise, under your theory, the copyright would belong to the bookbinder.

As to Shakespeare, non crimen sin legen. What copyright law is he protected under? Let’s stick to Orwell. Yes, his lawful successors in interest should enjoy copyright protection “in fee simple forever”.

Ah – the traditional “change the issue as soon as your caught” ploy. I asked you what the law SHOULD be in regards to Shakespere in light of your equating intellectual property with real property. Because you obviously realize that you will look like a fool by answering that question honestly, you decide to switch the topic to point out that copyright law no longer protects Shakespere. Nice try. (You would either have to admit that intellectual property should not be subject to the same protections as real property, OR, you would necessarily have to admit that Shakespere should NEVER be in the public domain, lest we embrace “Marxist” thought.)

Am I to now understand that you think that Orwell’s works should NEVER enter the public domain because they were created in the 20th Century, but that Shakespere should be in the public domain because he created the works a few hundred years ago??

Also – will you not admit that Orwell IS in fact in the public domain in Canada, Russia and Australia? Do you then embrace the idea that copying works in those physical territories is fine while copying them in the U.S. is a crime? After all, “non crimen sin legen” right??

Your economic theory of property is exactly backwards. It is the physical book that has intrinsic value – not the abstract content of the book. Under my theory, the “copyright” does not belong to the bookbinder as you suggest. REAL property rights belongs to the bookbinder. Copyright doesn’t enter into the equation. Again – this is not rocket science. The entire reason that the artificial concept of “copyright” was created in the first place was because everyone recognized that “intellectual property” had no value whatsoever since it could be copied. Governments felt the need to provide incentives for people to create things with no value – thus they passed laws to limit our copy freedoms in order to artifically create scarcity (thus value).

You cannot have value without scarcity. There is no scarcity when things can be copied at no cost.
No amount of your tortured language logic will change that.

Another challenge for you inspired by your tortured logic on this issue. If you genuinely believe that Orwell’s successors should continue to hold the rights to his works “forever”, let us imagine the following scenario:

What if his lawful successors think that Orwell’s work is junk and is not fit for public ocnsumption. They then embark to remove all Orwell’s works from the public and thus prevent anyone from creating or distributing any more copies of Orwell’s work. Those that had previously bought his works would be allowed to keep them until they yellow and waste away. Thus in a hundred years Orwell is effectively erased from the public culture because the successors wanted the works to disappear.

I presume that you would embrace the right of Orwell’s successors to do this, yes? And that the public would have no recourse against this scenario, right? If the public would have some “fair use” recourse against this – then how do you square that with your notions of property ownership?

“By what theory do any person’s products of that person’s labor belong to that person?” And see my #14.

Well, by how we know property. But ideas have some rather non-property features. Like you’re wrong about scarcity. My reading of orwell does not make it any less possible for someone else to read orwell. But thats not true of physical stuff. If I use some gasoline, then no-one else can use it.

So its not scarce. At least not the way economists understand the meaning of scarcity.

I am a lawyer and I know you are one too. What ex post facto laws could we pass to protect Shakespeare’s copyright or the Sioux Indians’s rights to North and South Dakota? I thought I answered your question honestly and directly. We cannot legally protect Shakespeare’s works now. If we could, then yes, his lawful succesors in interest should have complete control over his works — to market them freely, cheaply, expensively or not at all. And the same for Orwell. OK?

Now let’s get to the heart of the matter. You wrote:

“The entire reason that the artificial concept of “copyright” was created in the first place was because everyone recognized that “intellectual property” had no value whatsoever since it could be copied. Governments felt the need to provide incentives for people to create things with no value – thus they passed laws to limit our copy freedoms in order to artifically create scarcity (thus value).”

Gee, I wish you could cite some authority for that proposition. The people who wish to copy them certainly consider them to be of value. I paid for my collected works of Shakespeare because I thought they were of value. People will pay billions every year to see Shakespeare’s plays — just what value do they think they’re getting? How about this bizarre suggestion: Copyright laws exist because authors, playrights, composers, painters and sculptors are just as entitled to the fruits of their talents and labor as any tinker, tailor, doctor or lawyer?

You also wrote:
“You cannot have value without scarcity. There is no scarcity when things can be copied at no cost.”

Now who is confusing intellectual property with real property? Your argument reminds of the schoolboy who was asked by his teacher to describe what he did on his summer vacation in a 100-word essay. He wrote “Not much” fifty times. There is only one “Hamlet” regardless of whether it is written in a billion copies. The cost was that part of Shakespeare’s life that he gave to create it. The value is what people want to pay to read it, see it, hear it. Thieves obtain property at no cost to themselves and fence it to those who think it valuable meanwhile the true owner who incurred the cost sees no remuneration for that value.

“For your hardness of hearts … .” Yes, intellectual property is much easier to steal (copy) than real property. That makes it deserving of more stringent protection not less.

When people with law degrees lose arguments, they devolve into silly “lawyer” mode, using latin phrases and asking for “citations” on common sense. Pretty lame. Now equating the public domain to Indian claims on land?? Bwahaha!!

But at this point, I’m fine with letting the readers compare our responses (and whatever future response you have to this) and let them judge for themselves.

Only a lawyer would be silly enough not to recoginze the inherent contradition in the statement: “There is only one ‘Hamlet’ regardless of whether it is written in a billion copies.” Uh…no. If there are a billion copies, then there are a billion Hamlets. X=X ya know?

But hey – you go and stick with your notions of property. I’ll now join actus and the rest of the theives in Canada, Australia and Russia in the systematic rape of Mr. Orwell’s property.

It is quite convenient for you that you get to argue in a world where you have defined away any counter arguments. It is also odd that you quickly (and snarkily) dismiss your critics for analogizing intellectual property to personal (or real) property, while your whole system of logic here is based on property rules. Physical scarcity, and the lack thereof for intellectual property, is a useful area of discussion, but it is not the end of the debate.

I largely agree that copyright should be a lot looser than it is, but JL, some of your arguments are downright silly, and you’ve largely avoided tough questions by setting up straw men.

As an aside, for those interested, this discussion on the economics of copyright is one of the most interesting I have read. Definitely worth a look.

And, by the way, please explain how I would be violating copyright by simply clicking on the above link.

The idea of a perpetual copyright strikes me as a bit odd, if not unwise. Certainly nk is correct in his assertion that a person owns what he creates, but the acts of creation and publication are distinct, and when the creator chooses to publish, that act diminishes if not destroys the creator’s ownership rights, except where the public has accepted the continuation of those rights as a condition of the publication. The most convenient arrangement seems to be for the public to determine through its lawmaking process, what conditions it will accept; one who creates, having notice of those conditions, may choose to publish or not. The arrangment isn’t purely adversarial, since each person who creates copyrightable work is also a part of the group that must respect the copyrights of others. As one who has created copyrighted work, and also as one who enjoyed that created by others, I would caution against too narrowly drawing the boundaries of the public domain. The concern I expressed in my previous post is a real one, and after some period of time, the interest of a creator in obtaining fair value for his work are outweighed by his, and also the public’s, interest in preserving the work as a part of our common culture. I think, for written work at least, this is best accomplished by moving the work into the public domain. Different concerns may apply to visual art or music as performed, and failing to make such a distinction could discourage, rather than encourage, publication of valuable work. Consider Mr. Disney’s work as an example again — Consider whether the film “Fantasia” would have been made had perpetual and perhaps even transferable property rights kept the musical creations of Bach, Beethoven, Tchaikovsky, Dukas, Schubert and others from the public domain.

There is only one “Hamlet” regardless of whether it is written in a billion copies

But thats uniqueness, substitutability. Which is not the same as scarcity. There is one Hamlet, but one person consuming it does not make it any scarcer for those others wishing to consume it. There is an infinite supply of this unique story of Hamlet.

Let us note, however, that NK has copied the words of someone in this debate. By what theory has he taken their “property,” without permission or compensation?

NK, Shakespeare is a difficult example to use to make your point, as his writings have long been in the public domain (and are available for free on the web). However (and thank you), it does serve to make mine.

No one “buys” Shakespeare’s creation, as such, or even a right to use it, but rather simply purchases the paper, ink and bookbinding that make reading his work convenient. One might also buy a license to attend a performance of one of Shakespeare’s plays, but of course, the protected property interests involved are those of the performers and the producers of the play, not the playwright. Typically that license would not include any permission to record the performance; rather, such right would be expected to be reserved to the producer of the play, who might distribute multiple copies of a recording, each with a limited license permitting the purchaser’s own personal use, but not duplication, much less redistribution. The performance is something distinct from the writing, and is made possible, or at least easier, by the writing being available for public use. We can fairly say that no one, certainly not Shakespeare, is harmed by the public’s use of his writing, and that its being freely available both benefits the public and tends to preserve the writing as a part of our culture. Shakespeare himself undoubtedly would have objected to his work being prematurely deemed part of the public domain — but the issue is one of “when” rather than “if.”

I must say that I was warned that I might encounter this “actus” person — that he was frequently observed trolling the blogosphere, siezing upon the molehills casually thrown into these informal discussions and imagining them to be, and treating them as, the mountainous arguments of his adversaries, or even attempting to rebut points not actually made by others — really now, “let us note” that probably no one here noticed NK’s copying of the words of another in this discussion, each of us having implicitly consented to such use and most of us having a normally functioning irrelevancy filter. That’s your hint, actus. Be careful when you dwell on the unimportant stuff, because you might miss something more worthy of attention — that truck of an issue bearing down as you’ve absent-mindedly stepped off the curb is “fair use,” not scarcity or the lack thereof. You see, it is the purpose of copyright laws to balance fair use with artificially preserved (by the copyright laws, of course) scarcity of intellectual property. Scarcity — uniqueness, in fact — is indeed an inherent attribute of intellectual property and a necessary condition of recognizing something as such, which is destroyed upon publication, absent copyright laws. In order to enable an author to receive value in the marketplace, that scarcity must be preserved, and NK understands this, although in my opinion he goes more than a bit overboard with the perpetual preservation of such scarcity, at least when it’s applied to written work.

Be careful when you dwell on the unimportant stuff, because you might miss something more worthy of attention — that truck of an issue bearing down as you’ve absent-mindedly stepped off the curb is “fair use,” not scarcity or the lack thereof.

Fair use is quite different than consent. It’s for unpermitted copying.

In order to enable an author to receive value in the marketplace, that scarcity must be preserved, and NK understands this, although in my opinion he goes more than a bit overboard with the perpetual preservation of such scarcity, at least when it’s applied to written work.

My point to him is to take his maximal logic of ownership to its ridiculous extremes. His same arguments for perpetual copyright also wipe out fair use.

Scarcity — uniqueness, in fact — is indeed an inherent attribute of intellectual property and a necessary condition of recognizing something as such, which is destroyed upon publication, absent copyright laws.

Scarcity not ‘inherent’ in the subject matter of copyright. It’s created by the copyright law.

Scarcity is inherent in real property — as one person’s consumption or use reduces the ability of others to consume or use.

actus, wherever did you get the idea that scarcity of a commodity (or intellectual property) is only a function of use the commodity which has the effect of consuming it, and not also the producer’s decision to make the commodity available? Or that scarcity created by conditions imposed by the producer can’t affect price in a manner similar to scarcity imposed by consumption of the commodity? In the absence of copyright laws, producers of what we think of as copyrightable property would undoubtedly make attempts to limit the use of what they produce, but the returns obtained by enforcing those restrictions would diminish very quickly. Copyright laws greatly improve the ability of a producer to preserve the scarcity of what he produces, thereby allowing him to receive a value that, theoretically anyway, is approximately equal to the benefit users derive from its use, less the costs of production. Fair use is on the other side of the scale and conceptually includes much more than just the narrow subset that you referred to.

Ignoring the self-evident meaning of words in favor of a narrow, term of art meaning, and answering arguments at points along their logical path which are well outside of any reasonable application of those arguments aren’t behaviors to emulate; rather they’re symptoms of the brain damage caused by a post-modern legal education. I fear it may be too late for you.

actus, wherever did you get the idea that scarcity of a commodity (or intellectual property) is only a function of use the commodity which has the effect of consuming it, and not also the producer’s decision to make the commodity available?

Its not inherent, because I don’t suppose to know that people create or write or say things only for profit. We’re not doing so here, for example. It could be a factor, but its not inherent.

On the consumption end of real property though, it is inherent.

a post-modern legal education.

Legal education, sure. And it helps to be precise when we’re talking about the law. But post-modern? What?

The funny thing about actus’ argument is that a few weeks ago in a thread, he quoted Supreme Court Chief Justice John Marshall without attributing the quote to anyone in particular.
One might have been left to believe that the quote was spoken by the night air.
Naturally, no royalties were lost—just proper regard for authorship.

actus probably does not identify himself as a “Marxist,” per se, but he sure does exhibit the Marxist mentality—the fact that he generally ascribes external forces (as opposed to internal free will) to explain away behavior such as that of terrorists, criminals, etc.

And like Marx, actus does not believe the author/producer of a work deserves any special consideration for the fruits of his labor.

If you find some of my arguments to be “silly”, could you please identify them for me so that I can respond?

I do indeed “quickly (and snarkily)” dismiss critics for analogizing intellectual property to personal (or real) property because I find it to be a silly argument.

If intellectual property is to be treated the same as real propety, would you not agree that you would have to concede one of the two following propositions? –

1. There should be no “fair use” or “public domain” in intellectual property since I don’t have “fair use” rights to your own home – nor are you obligated to give it to the public after a fixed period of time.

2. If you think that intellectual property and real property are analogous, but still support fair use and public domain concepts, then surely you should think that those concepts apply to everyone’s real/personal property as well. (For instance – I should be able to borrow your car against your will, provided that I use it for “educational” purposes, etc.)

If you deny the premises in both of the above examples, then aren’t you NECESSARILY ADMITTING that intellectual property and real property cannot be eqauted? Don’t you then have to ask why we should distinguish between the two and what the implications of that are?

I definitely dismissed nk’s argument in a snarky manner because he is the one keeps insisting that real property and intellectual property are interchangeable concepts. I even got him to admit that Orwell should be kept out of the public domain for ALL TIME! That is a radical notion – so I do not apologize for my “snarky’ remarks in that regard.

“And, by the way, please explain how I would be violating copyright by simply clicking on the above link.”

Are you really serious about this?? As I explained, Orwell’s work is still copyrighted in most places outside of Russia, Canada and Australia. Perhaps you are trying to play the silly legal technicality came of “what if I don’t save it on my hard drive or don’t print it out. I’m not making a ‘copy’ then, am I?”

Surely you are intelligent enough to know that my post was directed at the biiger picture here. If people in the U.S. can still access Orwell’s works for free, then it renders copyright protection as a nulity.

I know, I know – the provisions of the DMCA in the U.S. have some protections for ‘caching’, so if you only look at the computer monitor without saving it to your hard drive or physically printing out a copy, then you might be safe. But doesn’t that just prove how silly copyright law has become in light of its stated objectives??

You can recall ALL of Orwell’s works for free at-will, anytime off the Russian computer server. But if you were to save it on your hard drive and recall it from there, then you are comitting a federal crime. Makes total sense to me! (/sarcasm)

With all due respect, when I get silly questions like this – I feel perfectly justified in giving a “snarky” answer.

One might have been left to believe that the quote was spoken by the night air.

Not anyone with the least bit of familiarity of the source of judicial review. As to royalties, I don’t think US government works are copyrighted.

And like Marx, actus does not believe the author/producer of a work deserves any special consideration for the fruits of his labor.

Now you have me curious on what Marx, a rather poorly paid writer, would say about intellectual property. He would probably make the distinction, that American IP law does not, between the one who produces the work (the musician, or the reporter) and the one who owns the copyright (the label or the newspaper company). He would remind us that the law protects not the creator, but the owner of the copyright, and thus it may be another tool of extracting surplus value.

actus:
“For your hardness of hearts …” is from the New Testament. Not only did not the Author reserve a copyright but He commanded that the Word be carried to every person. But that’s beside the point. That was so small on your part.

Mr. Levine:
I showed you too much deference. I should have realized that someone who says “real property” when he really means “tangible property” (“real property” is a term of art for land) is not to be taken seriously. Likewise, your “X=X” (Comment 22) is not merely sophomoric — it is infantile. Even my four-year old understands that because she has two copies of “Cat In The Hat” does not mean that she has two different books — just the same book twice.

You did not get me to admit anything. I argued about the perpetuity of ownership of writings in my very first comment here (Comment #5). You came back with your pizza analogy, switching from copyright to patent, which Mr. Blair knocked down; switched from Orwell fifty years dead to Shakespeare 400 years dead; and could not resist: “I also can’t resist pointing out the sublime irony of somebody suggesting that the writings of a devout socialist should be kept out of the public domain because of concerns over “Marxism”. Orwellian indeed…”. I was too polite to point out that if Orwell had been the socialist you assume he was he would have willed his works to the public domain instead leaving it to his heirs. Intead, I ignored your irrelevancies and addressed what I perceived to be the substance of your arguments, casting “pearls before swine”. (That’s also from the New Testament, actus.)

I was also too deferential in responding to this nonsense you wrote: “The entire reason that the artificial concept of “copyright” was created in the first place was because everyone recognized that “intellectual property” had no value whatsoever since it could be copied. Governments felt the need to provide incentives for people to create things with no value – thus they passed laws to limit our copy freedoms in order to artifically create scarcity (thus value).” You mocked me because I asked for authority. I should have just stated what I believed — that it is just some BS you made up.

Your mocking of my use of Latin legal maxims and terms — “non crimen sin legen” and “ex post facto” — was an appeal to which part of your readership, exactly? Those uneducated and anti-intellectual enough to take your nonsense seriously, is my guess.

In the end, you destroyed your own case and proved yourself a hypocrite with your subsequent “Why Orwell Still Matters (Hitchens is Right)” post. You copy copiously from Orwell. You obviously found “value” in that intellectual property. Your problem is paying a few dollars for even a used copy of it and all your arguments are a rationalization why you should freeload.

I now see why you disdain protection for intellectual property. You lack the intellect ever to create anything protectible. I offer your “Why Orwell Still Matters (Hitchens is Right)” post as further evidence. Orwell and Hitchens had the creativity to write something original. You could only parasitize off of them. You will always need the ideas of others and thus you look for rationalizations why you should not pay for them.

I should never have take you seriously and never paid you such deference. It was mostly from regard for Patterico who claims you as his friend. But now you are in the same category as actus (too bad, actus, for a time I thought you were growing up.) Giggle, ignore.

As I’ve said, I’m content for our exchnages to remain here and let the readers make up their own minds. If you are right, then you have nothing to worry about – The public will be certain see me for the fraud you claim that I am and be convinced about your own theories on IP.

But I just have to make one more attempt to come to an understanding on this point: “Even my four-year old understands that because she has two copies of ‘Cat In The Hat’ does not mean that she has two different books — just the same book twice.”

Fair enough. But does your daughter also then understand that the ‘Cat In The Hat’ book would not be “unique” since she has “the same book twice”?

You will always need the ideas of others and thus you look for rationalizations why you should not pay for them.

Careful. After you school the dude on terms of art, you go ahead and say this. Copyright does not protect ideas, but only expressions. Anyone can share Orwell’s and hitchen’s ideas. What they can’t share is their expression of those ideas.

Not anyone with the least bit of familiarity of the source of judicial review. As to royalties, I don’t think US government works are copyrighted.
*******
actus, you are hilarious in your inability to call a spade a spade.

Whenever you get into a debate with someone—you often find yourself against the ropes, so, you dig yourself out by simply misrepresenting what you said, and what the other person said.

You may continue to offer denials, but you intentionally chose not to attribute Marshall’s quotes from Marbury vs. Madison (1803), and I called you on it.
I was the person to identify those quotes from that particular court decision about judicial review—not you.
But thanks for playing.

And of course Marshall didn’t receive royalties for a court opinion—judges do not, the opinions they author are part of their public service for which they receive a salary.
I don’t know if you’re aware, but court opinions are not even sold as commerce.

And actus, as far as your musings on Marx, Marx actually had some money—he was no pobrecito.

Marx wasn’t much for private ownership—so your hypothetical about publishers’ copyrights, etc. in a Marxist society is merely an exercise akin to asking Boy George of Culture Club to tell you the name of the WOMAN he’s dating.

You may continue to offer denials, but you intentionally chose not to attribute Marshall’s quotes from Marbury vs. Madison (1803), and I called you on it.

Actually someone else pointed out where I was from. And you ‘called me out on it’ by clearly referencing the case I was conjuring. I’m sorry if my subtlety is interpreted by you as subterfuge. What did you think I was trying to do by putting those words in quotes? pass them off as my own? pass them off as meaningless?

I don’t know if you’re aware, but court opinions are not even sold as commerce.

I told you that US govt works aren’t subject to copyright, so that means I’m quite aware.

And actus, as far as your musings on Marx, Marx actually had some money—he was no pobrecito.

I heard his family ended up not very well when he passed, mostly because he didn’t make money.

actus said:
Actually someone else pointed out where the quote was from.
**********
No, actus, actually I WAS THE ONE who specifically pointed out that the Marshall quote you intentionally failed to attribute was from Marbury vs. Madison (1803).
It’s all saved for the record in Patterico’s archives, in case you seek further embarrassment.

Again, my point is that you took Marshall’s quotes without attribution. There was nothing ‘subtle’ about doing that.
The quote is NOT so ubiquitous such as a verse from the Bible, that any reader would say, “That’s OK, we all knew where he took the quote from.”

********************
actus said: I don’t think US government works are copyrighted.
********************
actus, again, you lied about what you said. You said nothing about the commercial aspect of it. There is a distinction between a copyright, and the fact that something is sold commercially.

actus, as far as your worship of Marx, Marx came from a middle class background, and had some money in his younger days prior to his middle age.

But the point is not whether or not he lived like a king or a pauper; the point you miss is that Marx wasn’t much for private ownership—so your hypothetical about Marx’s projected belief about modern-day publishers’ copyrights, etc. is merely an exercise akin to asking Boy George of Culture Club to tell you the name of the WOMAN he’s dating.
(Boy George is not aroused by women—nor was Marx aroused by private ownership. Comprende ?)

The quote is NOT so ubiquitous such as a verse from the Bible, that any reader would say, “That’s OK, we all knew where he took the quote from.”

But people know its a quote. Whoever is interested in where its from can stick it into google.

Did you, or anyone, think that I was passing it off as my own? I put it into quotes for a reason. Because I wanted people to look into it and on their own come to the conclusion of the reasonableness and power of judicial review. Dear god.

You’ll notice that in that thread, I said it was from John Marhsall before you did.

You said nothing about the commercial aspect of it

You can can get copies of the US reports — court decisions — from a commercial vendor. But the decisions themselves are not copyrighted. Again, dear god.

actus, as far as your worship of Marx, Marx came from a middle class background, and had some money in his younger days prior to his middle age.

I know his parents were well off. But I heard his children and wife weren’t well off because of him not being good about making money and supporting them.

Boy George is not aroused by women—nor was Marx aroused by private ownership. Comprende ?

I understand. Part of marx’s lack of amusement would be because he differentiates between the worker/producer and the capitalist/owner.

[…] Yes – I am well aware of how the tone of this last statement may come across to the readers who disagree with me. I stand by it. I invite you to have your way with me in the comments section and take your best shot, and then let the public decide. Every truly great website and advancement of this medium has come at the expense of rethinking our intellectual property laws – starting with the “forward” button on your e-mail (which naturally violates copyright law each time you use it). Think of all the truly great sites on the Internet – Google, Youtube, Drudge, Ebay, Napster (and its file-sharing progeny), etc. All of them have either pushed the boundaries of traditional intellectual property law, have been destroyed by it, or are actively fighting it for its own survival. Some of the hard won freedoms that the Internet has secured are even now taken for granted by many in the blogosphere. People forget that there was a legal battle over the concept of simply linking to another site. Some vociferously argued at the time that unauthorized linking was its own form of “theft”. That legal outcome could have just as easily gone the other way. But now that the freedom to link has been secured, it has passed into the realm of standard blogging culture, so few people think of it as improper any more. What was once branded “theft” has now become standard etiquette for communication. The same will (hopefully) continue to happen with other outmoded aspects of intellectual property law. Remember in the early 1990’s when Garth Brooks and other artists called it “theft” when record companies started allowing you to buy used CD’s? Now that Ebay exists, you don’t hear that anymore. Garth Brooks would be rightly laughed off the planet for making those same claims today. New technologies can move and shape cultures. The Internet is the most radical new technology of our lifetimes. It therefore calls for an equally radical change in the culture. (In this case, the legal culture.) If a technology allows for incremental changes and compromises in the culture, fine. But if it doesn’t, then you have to make a clear choice as to what will be legal and what will not. So now we are at a crucial point in the fight for blogging freedoms. Perez Hilton is indeed “fighting for all of us bloggers” – even for the ones who use the very freedom that blogs offer in order to call for more restrictive copyright schemes that will ultimately kill off the true potential of this medium. If you think that all bloggers should always be forced to get permission to use other’s creative works, fine. I know many of you seem to feel that way. But I ask you to please understand the full consequential scope of what that will ultimately mean to blogging and the Internet. The same people who take me to task for encouraging people to read copyrighted works of dead authors for free seem to have nothing to say when other bloggers such as Hugh Hewitt actively encourage similar forms of copyright infringement without a second thought. It is imply impossible to tap into the Internet without being confronted by the “copyright culture” challenge at some point. Something has to give. Naturally, this same concept will apply to your use of political photos as well. Want to post a photo of Clinton, Carter or Bush without paying for it? How do you justify that in light of your beliefs? Oh wait – You think that pictures of politicians are “news”, but that pictures of Paris Hilton somehow aren’t? Who gets to make the “news” vs. “entertainment” distinction in this day and age? How is that even remotely possible? What objective criteria are you using? If you think that Perez is right, even better. But then you should admit that you are ultimately on my side too (even if you are reluctant to admit it). If the current technology allows for a compromise position here, I fail to see it (but I’d be happy to have you point it out to me). Bloggers have made great strides in getting the legal culture to radically rethink defamation law in order to give our medium room to breathe. But quite tellingly, that same form of immunity from liability does not extend to copyright infringement. 5. For those who think that it should be unlawful to do what Perez is doing, do you not also think that it should be unlawful for the paparazzi to do what they do? This is no problem for me – I happen to think that both activities fall squarely under free speech. But I find it absolutely bizarre that somebody could actually hold the view that posting somebody else’s picture on their website without permission is a form of copyright infringement, but simultaneously thinking that taking the picture in the first place without permission is isn’t its own form of intellectual property infringement. For the person who is depicted in the photo – isn’t it a violation of their “publicity” rights? If not. Don’t they deserve to have joint ownership of the copyright since they were responsible for the poses and other creative elements that went into shaping the photo?? If you think that both activities should be unlawful, fine. You have a frighteningly restrictive view of free speech in a modern society – but at least you are consistent. But for those who hold that Perez is infringing on people’s intellectual property, but that the paparazzi photographers somehow aren’t…What can I say? I really can’t debate a position that goes against what I consider to be common sense. So I’ll just skip the attempt at debate here and go right into the name calling: For those of you who think that what Perez is doing is wrong, but that paparazzi photographers still have a right to what they do – You are all silly and stupid people. If you wish to use the comments section of this post to call me names back, fine. It will simply confirm the depth of your silliness and stupidness in my eyes. So there! On the other hand, maybe we can just say that we will never (ever) understand each other, and leave it on a civilized note. I’ll leave it up to you. 6. Perez is being a bit naïve in one regard – copyright cases usually do not allow you to be “judged by your peers”. The courts have taken away a defendant’s right to have their fair use arguments be decided by a jury. There is a simple reason for this, and (despite what the courts say) it is not because fair use is “a mixed question of law and fact”. It is because if juries actually got to decide copyright cases based on their gut notions of what is “fair use”, there would be a revolution in copyright law that the media conglomerates would not tolerate. Most copyright infringement cases that are filed today would be laughed out of court by the average Joe on the street. (“What’s that? Your documentary cameras incidentally caught 4 seconds on ‘The Simpsons’ on a television set in the background? You didn’t bother getting ‘clearance’ on the clip? And the plaintiff now claims that it is entitled to HOW much money?? Bwahhaaahaaa!!!!”) As a result, judges are needed to take that power away from juries and decide such cases based on the carefully crafted “four factor test” of fair use (which again, can be easily twisted to justify any decision that you want). 7. “Why doesn’t Us or People just steal the photos and not pay for them? What’s the difference?” “Us” or “People” shouldn’t be required to pay for photos for use in a news context. So ultimately, there is no difference. That’s the point! Fair use should be available for all. As I’ve already explained, I think the “stealing” charge is bogus. If you think otherwise, then why aren’t the celebrities in question entitled to the money as opposed to the intrusive photographers? There only became a market for such photographs when there was a functional oligopoly on media creation and distribution. Now that the oligopoly no longer exists, the market has changed. One does not have a “right” to have such a market continue indefinitely. Horse buggy makers had no right to continue their sales with the advent of the automobile. The Internet represents an even more radical invention than that instance. There are plenty of reasons why “Us” or “People” may still wish to pay money for photos (to ensure consistent or timely delivery, to ensure quality negatives as opposed to running compressed digital images, etc.). Fair use is an essential concept that everyone be allowed to partake in. The Perez Hilton case represents another “Tucker” moment. Anytime somebody new and truly competitive comes on the scene in a given industry, the old guard will try and take him down through the legal system because they know they can’t compete. Perez is at the top of his game – and I’m drinking a toast to him this holiday season. Long live Perez! Long live Internet freedoms for all!!!!!!!!!!!! (To be recited in your best “Braveheart”-style yodel.) Ok. My rant is over. Flame away with your charges of Communism, arrogance, Arrogant Communist, etc…. [posted by Justin – not Patterico] […]

[…] 1. I need to congratulate David Nimmer for being honest enough to admit that it is impossible to tell if a court will find fair use in this instance. In fact, it is often impossible to tell in most cases. Fair use is (unfortunately) determined on a case-by-case basis, and courts will often split some very fine hairs in order to distinguish one case from the other. This ultimately creates a huge chilling effect on free speech since there is no clarity in the law here. Predicting either fair use or infringement in a copyright case is like reading tea leaves or trying to predict if a display of religious iconography on state grounds is artistic free speech or an unconstitutional establishment of religion. The legal “test” to determine one from the other is infinitely elastic and can be used simply to suit the personal preference of the judge and allow him to hide behind the jargon of the fair use “factors”. The courts have provided no objective road map in this regard. And for this, they should be ashamed. 2. Although I admire Nimmer’s statements in this instance, I continue to believe that, over all, he has actually been a detriment to copyright law. Not though any fault of his own mind you, but rather due to the laziness of our federal judges. Rather than occasionally quoting “Nimmer on Copyright” as a secondary source in copyright decisions, many judges have treated “Nimmer” as the be-all-end-all bible on copyright authority (even seemingly elevating it above case law in some instances). I have never known a legal treatise written by a single individual to wield so much influence in an area of law as “Nimmer on Copyright”. This is both bad and dangerous for our legal system. While people may agree with Nimmer on many aspects of his analysis, they can legitimately differ on others, and it is wrong to simply substitute his own analysis in place of that which has been developed by specific case law. 3. I continue to believe that people who describe instances of copyright infringement as “theft” are just being silly. There can certainly be valid public policy arguments as to why it should be unlawful to copy a creative work – but using the term “theft” to describe it is simply an abuse of the English language (even if you are trying to speak in a form of shorthand to describe your policy preferences). If copyright infringement was actually a form of “theft”, then there wouldn’t be a need for copyright laws to begin with. We should simply prosecute people criminally under traditional laws outlawing theft and larceny. The fact that most infringers are not prosecuted criminally, but are instead merely sued civilly by private parties should tell you something. The term “theft” can only be applied appropriately to resources that are both tangible and scarce. Enough said on that for now. 4. Many bloggers and readers of this site continue to criticize my stance on intellectual property (even during the times when they don’t manage to distort it). I continue to maintain that such critics are not only wrong, but they are frankly (in my humble opinion) undeserving of the blogosphere and the Internet since they fail to appreciate the legal fights that have become necessary to preserve the freedoms that this medium has to offer. They remind me of the leftist loons who use the freedoms that America has to offer in order to trash it. Yes – I am well aware of how the tone of this last statement may come across to the readers who disagree with me, but I stand by it. I feel the need to throw down the guantlet here. So I invite you to have your way with me in the comments section to take your best shot, and then let the public decide. Every truly great website and advancement of this medium has come at the expense of rethinking our intellectual property laws – starting with the “forward” button on your e-mail (which naturally violates copyright law each time you use it). Think of all the truly great sites on the Internet – Google, Youtube, Drudge, Ebay, Napster (and its file-sharing progeny), etc. All of them have either pushed the boundaries of traditional intellectual property law, have been destroyed by it, or are actively fighting it for its own survival. Some of the hard won freedoms that the Internet has secured are even now taken for granted by many in the blogosphere. People forget that there was a legal battle over the concept of simply linking to another site. Some vociferously argued at the time that unauthorized linking was its own form of “theft”. That legal outcome could have just as easily gone the other way. But now that the freedom to link has been secured, it has passed into the realm of standard blogging culture, so few people think of it as improper any more. What was once branded “theft” has now become standard etiquette for communication. The same will (hopefully) continue to happen with other outmoded aspects of intellectual property law. Remember in the early 1990’s when Garth Brooks and other artists called it “theft” when record companies started allowing you to buy used CD’s? Now that Ebay exists, you don’t hear that anymore. Garth Brooks would be rightly laughed off the planet for making those same claims today. New technologies can move and shape cultures. The Internet is the most radical new technology of our lifetimes. It therefore calls for an equally radical change in the culture. (In this case, the legal culture.) If a technology allows for incremental changes and compromises in the culture, fine. But if it doesn’t, then you have to make a clear choice as to what will be legal and what will not. So now we are at a crucial point in the fight for blogging freedoms. Perez Hilton is indeed fighting for all of us bloggers – even for the ones who use the very freedom that blogs offer in order to call for more restrictive copyright schemes that will ultimately choke off the ultimate potential of this medium. If you think that all bloggers should always be forced to get permission to use other’s creative works, fine. I know many of you seem to feel that way. But I ask you to please understand the full consequential scope of what that will ultimately mean to blogging and the Internet. The same people who take me to task for encouraging people to read copyrighted works of dead authors for free seem to have nothing to say when other bloggers such as Hugh Hewitt actively encourage similar forms of copyright infringement without a second thought. It is imply impossible to tap into the Internet without being confronted by the “copyright culture” challenge at some point. Something has to give. […]

I suppose I have come to this rather late. That being said, I am not about to offer support for nk and his kind. Snobbish arrogance is no substitute for rational thinking. Personal attacks such as “those uneducated and anti-intellectual enough to take your nonsense seriously” do not enhance ones position. Picking out some insignificant aspect of the question and distorting it in an attempt to avoid the real issue is, well, frankly, akin to my own child covering her eyes with her hand… thinking I can’t see her. We can all see you nk, we all see the game you are trying to play here. I am not surprised though, American lawyers make a living by distorting facts and diverting attention from truth. I would appreciate knowing where you were educated. I mean, I suspect it must be Cracker Jack Uni, for if not… I fear for the future of the educational system.

By the way, I too have had my copyrighted material reused without my permission, repackaged on a CD in fact, and sold from a Russian web site. Nothing I could do about it. Would I want to see those who `stole` my work punished? No! I may want to thank them for helping my works reach a broader audience.

Copyright is misused by copyright owners, notice that I am not talking about authors but about the publishing houses who have the copyright assigned to them. How is that protecting the author?